Office of the Attorney General
State of Texas

Re: Whether the Texas Youth Council may provide medical
services to its wards without parental consent.

Dear Mr. Jackson:

You have asked several questions concerning the authority of
the Texas Youth Council (hereinafter TYC) to provide medical
services to its wards under three different but overlapping sets
of circumstances:

(1) When parents have not responded to a request for
consent;

(2) When parents have expressly refused their consent;

(3) When the patient has refused consent.

Title 2 of the Texas Family Code deals with the parent-child
relationship, and Title 3 establishes procedures for dealing with
delinquents. Like Title 2, Title 3 contemplates the removal of
children from their home by the power of the state. Compare
Chapters 15 and 17 of Title 2, with Chapters 51, 52, 53 and 54 of
Title 3. Unlike Title 2, Title 3 does not specifically indicate
the manner in which the substantive rights of a parent are
altered by a proceeding in which the state takes custody of the
child. Compare Chapters 12 and 14 of Title 2 with section 54.04
of Title 3. Yet the parent-child relationship is necessarily
altered by any disposition under section 54.04.

Section 12.04 states:

Except as otherwise provided by judicial order or by an
affidavit of relinquishment of parental rights executed under
Section 15.03 of this code, the parent of a child has the
following rights, privileges, duties, and powers:

(1) the right to have physical possession of the child and
to establish its legal domicile;

(2) the duty of care, control, protection, moral and
religious training, and reasonable discipline of the child;

(3) the duty to support the child, including providing the
child with clothing, food, shelter, medical care, and education;

(4) the duty to manage the estate of the child, except when
a guardian of the estate has been appointed;

(5) the right to the services and earnings of the child;

(6) the power to consent to marriage, to enlistment in the
armed forces of the United States, and to medical, psychiatric,
and surgical treatment;

(7) the power to represent the child in legal action and to
make other decisions of substantial legal significance concerning
the child;

(8) the power to receive and give receipt for payments for
the support of the child and to hold or disburse any funds for
the benefit of the child;

(9) the right to inherit from and through the child; and

(10) any other right, privilege, duty, or power existing
between a parent and child by virtue of law.

(Emphasis added). Under section 54.04(d) of the Family Code, a
child may be placed

(1) . . . on probation on such reasonable and lawful terms
as the court may determine for a period not to exceed one year,
subject to extensions not to exceed one year each:

(A) in his own home or in the custody of a relative or other
fit person;

(B) in a suitable foster home; or

(C) in a suitable public or private institution or agency
except the Texas Youth Council; or

(2) if the court or jury found at the conclusion of the
adjudication hearing that the child engaged in delinquent
conduct, the court may commit the child to the Texas Youth
Council.

A simple reading of this section shows that, under any possible
disposition, parental rights as defined in section 12.04 are
altered. Each possible disposition alters the rights in
different ways. Any disposition provides at the least that the
court assumes the duty of care, control, protection, and
reasonable discipline of the child. Placing the child with a
relative temporarily extinguishes the parent's right to have
physical possession of the child. The placing of a child with
TYC is obviously the disposition which most thoroughly alters the
rights, privileges, duties, and powers of a parent. However, no
mention of the different alterations of the parental powers and
duties is made in the Texas Family Code.

One reading of the law would give TYC very broad powers as a
result of a court's commitment of a child to its care. Section
51.02(3) of the Family Code defines 'guardian' as

the person who, under court order, is the guardian of the
person of the child or the public or private agency with whom the
child has been placed by a court.

This plainly makes TYC the guardian of a child committed to it
under section 54.04 of the Family Code. Title 2 of the Family
Code does not define 'guardian' as a term of art but does define
the term 'managing conservator,' in section 14.02. In the
context of the Probate Code, it has been squarely held that
guardianship and managing conservatorship are the same.
Guardianship of Henson, 551 S.W.2d 136 (Tex. Civ. App.--Corpus
Christi 1977, writ ref'd n.r.e.). However, the definition of
managing conservator in the Family Code seems specially designed
to deal with the problems raised in a divorce. This reading
would give TYC far more power over its wards than we believe the
legislature contemplated. We therefore rest our opinion on other
grounds.

TYC originated with the Gatesville School for Boys in 1889.
From that date until the present TYC and its predecessors have
provided medical services of all sorts to the juveniles committed
to its care with only the most general authorization. For
instance, Acts 1913, 33rd Leg., 1st C.S., ch. 6, ss 12, 13, at 7,
provided:

The superintendent shall divide the inmates into such classes
and shall house, feed and train them in such manner as he deems
best for the development and advancement of the child. All
inmates shall be provided with shelter, wholesome food and
suitable clothing, books, means of healthful recreation and other
material necessary for their training, at the expense of the
state, except as otherwise provided by law.

This statute was the sole authority for education, housing,
medical care and other treatment of juveniles from its enactment
until 1949. It is still on the books as V.T.C.S. article 5129.
That medical care was authorized by this very general language,
and that the legislature in fact was aware that such medical care
was provided, is demonstrated by the reference to a 'resident
nurse' in Acts 1913, 1st C.S., 33rd Leg., ch. 6, s 15, at 7. The
section was amended slightly and the words 'school physician'
were substituted for 'resident nurse' in 1945. Acts 1945, 49th
Leg., ch. 247, s 1, at 385.

In 1949, the state legislature transferred the control of the
State Training Schools, including the Gatesville School for boys,
from the Board of Control to a newly created State Youth
Development Council, V.T.C.S. art. 5143c, and in 1957, to TYC.
V.T.C.S. art. 5143d. In each case it was specifically provided
that the new agency would succeed to all the powers and rights of
its predecessor. Art. 5143c, s 8; art. 5143d, s 5(c).

The 1949 legislation concerning juveniles was an attempt by the
legislature to organize and modernize the system of State
Training Schools. The great bulk of article 5143c, the major
1949 statute, is devoted to laying out a blueprint for the
organization of state administrative and judicial procedures
dealing with juveniles. Several sections of the law also address
the authority of the newly created state agency to deal with its
wards. It seems clear from the fact that the original section
which granted similar authority, article 5129, was not repealed
that the provisions of article 5143c were meant merely to
elucidate and not to limit the powers of the state agency.

The new sections addressed the issue in language somewhat more
specific than the old, but still very general. For example,
article 5143c, section 1 stated that the purpose of the act was
to develop

in all children the spiritual, mental, and physical resources
necessary for complete citizenship responsibility and
participation. . . .

Section 2 of the article provided, significantly for the purposes
of interpretation,

This Act shall be liberally construed to accomplish the
purpose herein sought.

(Emphasis added). It was also provided, in section 19 of article
5143c that:

As a means of correcting the socially harmful tendencies of a
child committed to it, the Council may:

. . . .

(b) Require such modes of life and conduct as seem best
adapted to fit him for return to full liberty without danger to
the public;

(c) Provide such medical or psychiatric treatment as is
necessary; . . .

Article 5143c, section 26(a) contains evidence that the
legislature considered medical care and treatment of its wards to
be among the responsibilities of the agency. It provides that:

For the purpose of carrying out its duties, the Council is
authorized to make use of law enforcement, detention,
supervisory, medical, education, correctional, segregative, and
other facilities, institutions and agencies, within the State. .
. .

In addition to these very broad guidelines, the agency was given
extensive rule-making powers, article 5143c, section 22; and the
power to order a child's confinement 'under such conditions as it
believes best designed for his welfare and the interests of the
public,' article 5143c, s 18. The 1957 legislation reorganized
the system again, but left the substantive provisions quoted
above virtually in tact.

Summarizing the historical grant of authority to TYC and its
predecessors, we conclude that this authority was broad indeed.
Prior to 1949 it plainly included the power to consent to medical
care. Nothing in the 1949 and 1957 enactments changed that.
When an emergency situation required hospitalization of a TYC
ward, the superintendent of the school signed the hospital's
consent form. For most matters, however, no consent form was
required because most ordinary medical care was provided by the
schools themselves. Every TYC institution has and has had for
many years a staff physician, a staff dentist, a staff
psychiatrist and a staff of several nurses.

When the legislature enacted the Family Code, it did not repeal
any section of article 5143d. On the contrary, the statement of
purpose in section 51.01 of the Family Code indicates that the
broad aims and grant of power under article 5143d were to be
continued undiminished. It was again emphasized that the purpose
was to 'provide for the care, the protection, and the wholesome
moral, mental, and physical development of children' coming
within the provisions of Title 3 of the Family Code. Section
51.01(1). (Emphasis added). According to article 51.01(4), the
state intends to give its wards 'the care that should be provided
by parents.' Under article 5143d, section 23(a) TYC is enjoined
to provide for the needs of a child 'as those needs would be met
in an adequate home.' Rather than limiting the authority of the
state to act to provide care for delinquent children, the
drafters of the Family Code intended to give the state adequate
power to upgrade the quality of services provided. Dawson,
Commentary on Title 3, Texas Family Code, 5 Tex. Tech. L. Rev.
509 (1974). It was considered that the state would be acting as
a 'parent.'

TYC is authorized to consent to medical treatment of its wards
when paretns have not responded to a request for consent. The
conclusion that TYC has the power to consent to medical care for
its wards is thus supported by the historical practice and the
statutory scheme creating TYC. It would be anomalous to find
that the legislature, having charged TYC with the care of
delinquent youths, failed to grant the agency the power to
consent to such care on behalf of its wards. The order of a
juvenile court committing a child to TYC should be construed as a
judicial order, within the meaning of section 12.04 of the Family
Code, which grants to TYC, as the child's guardian, a power to
consent to medical care which supersedes that of the parents.

Turning to the second question, we find that its resolution is
slightly more complex. This is so because TYC's power is
limited. TYC's guardianship powers under article 5143d extend
only so far as is necessary to accomplish the statutory purpose.
While its authority supersedes the power of the parent in many
respects, some residuum of parental power remains. For example,
TYC may not require its wards to submit to religious training
because the First Amendment to the Constitution of the United
States prohibits it. Parents may do so. In the area of medical
care, the state's power to consent to medical treatment and
procedures extends only to those which are reasonably calculated
to improve a child's prospects for future health and
rehabilitation, and thus for reintegration into society. We
conclude that while TYC has the power to override some parental
objections, it decisions would be subject to attack by a parent
or a guardian ad litem of the child, on the ground that the
decisions would not be in the child's best interest. In such a
situation the wishes of the child would be extremely important.
The resolution of this conflict would depend upon the nature of
the medical procedure proposed and the relative weight of the
various interests of the parent, child, and state which it
involved. This balancing of competing interests by a court
comports with the scheme envisioned by section 35.01 of the
Family Code. It is important to note, however, that section
35.01 does not govern the situation being discussed. When TYC
has notice of a parental objection, it should seek a judicial
determination of its authority in a court having jurisdiction of
the child.

Even in the face of parental objections, TYC has independent
authority to compel treatment of its wards for infectious or
contagious diseases. Jacobson v. Massachusetts, 197 U.S. 11
(1905); Abney v. Fox, 250 S.W. 210 (Tex. Civ. App.--Austin 1923,
writ ref'd). It is also true that a minor may consent to the
diagnosis and treatment of any infectious, contagious, or
communicable disease which is required by law or regulation to be
reported to a local health officer. Sec. 35.03 Texas Family
Code. Such laws and regulations exist in Texas. See V.T.C.S.
art. 4477, Rules 1-33. In an emergency situation, and possibly
in other situations, actual consent of either parents or child is
not necessary since consent will normally be implied. See Moss
v. Rishworth, 222 S.W. 225 (Tex. Comm'n App. 1920), jdgmt.
adopted.

In answer to your third question, the objections of a minor to
medical treatment may in the ordinary course of things be
overriden by TYC. TYC always has the duty to act in the child's
best interest, and a decision by TYC to require one of its wards
to undergo any particular medical treatment would be subject to
attack on this ground, but we think that requiring medical
treatment is geneally within TYC's grant of authority under
article 5143d. We note, but do not address, the question of the
extent of the constitutional right articulated in Roe v. Wade,
410 U.S. 113 (1973). This right will affect TYC's power to
compel medical treatment in certain cases.

SUMMARY

TYC has authority to consent to medical care for its wards in
the absence of parental consent. When TYC has notice of a
parental objection to medical treatment the TYC should seek a
judicial determination of its authority. TYC may provide medical
care to its wards even though they may object.